Cooper v. Peck

22 Ala. 406

• Court: Supreme Court of Alabama
• Decided: January 15, 1853
• Status: Published

Opinion

LIGON, J.

The principal points presented by this record, have already been passed upon by this court, in the case of Braley v. Clark, at the present term.

It is there held, that the condition of a replevy bond can only be complied Avith by a delivery of the property re-plevied to tbe sheriff, on his demand, after judgment against the defendant in attachment. The tender of a bond to try the right of the property replevied, when the property itself is withheld from the sheriff, is a breach of the condition of the bond, and justifies the sheriff in returning it “forfeited.”

After such forfeiture, the statute gives the plaintiff in the attachment a right to a writ of fi. ja. against all the obligors in the replevy bond, without any further action of the court. Clay’s Digest 58 § 11. In the case under consideration, the execution which was superseded had been regularly issued, and as the petition does not show that any unjust, illegal or oppressive use was sought to be made of it by the sheriff, the supersedeas should not have been awarded. As, however, it was granted, the court should 'have dismissed it on the motion of the plaintiff in error.

Let the judgment be reversed, and the writ of supes'sedeas be dismissed.